Aug 02, 2012

“Let’s kill all the lawyers”

Jokes. They can go wrong. Very wrong.

But….

Sometimes it’s ok.

On 6 January 2010 a tweeter called Paul Chambers was really looking forward to meeting up with a woman he’d started a relationship with online. He really really wanted to meet her. The problem was he was in the UK and she was in Ireland and it was January. Now if you know the UK you know we don’t ‘do’ snow. It’s weird white stuff we only see on xmas cards. Most of all roads and airports just don’t /do/ snow. So on hearing that his local airport was closed Paul Chambers tweeted:

Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!

Then you know what happened?

Nothing.

Then more nothing.

Then a bit later a bit more nothing.

Then several days later while searching for tweets about ‘Robin Hood Airport’ staff found the tweet. Then things got bad for Mr Chambers. Bad as in 4 2 years later he’s in the High Court in front of the Lord Chief Justice of England and Wales – and that’s gotta count as bad in most people’s books.

So, to cut to the law – Chambers was charged and then convicted under the 2003 Communications Act. This says that you can’t send a message that's menacing, grossly offensive, indecent or obscene using a public commutations network.

As you may imagine this conviction freighted the bejebus out of anyone and everyone who’s concerned with human rights, free speech, jokes on twitter and what one man (or woman) might say when they want to get into the pants of another (man or woman or both).

This in turn resulted in some high-powered legal minds in the UK taking the case on and fighting it all the way to the High Court. It also resulted in comedians taking a stand on what they can legally joke and about a twitter campaign using the slogan ‘this might be a joke’.

But for the rest of you there are three bits of the case that got legally interesting:

Q: Is Twitter a public communications network?

A: Yes

While it’s a privately held company it relies on the internet and the public timeline is available to anyone that want’s to look at it. The fact that tweet (a message) later becomes ‘content also does not matter.

Q: Was the message menacing?

A: No

Here the High Court basically said – look, it was a joke. It looked like a joke, everyone knew it was a joke. Even the security staff at the airport when they did read it did not think it was a threat as they did absolutely nothing in respect of the security of the airport. What’s more it could not be considered a terrorist threat as terrorist don't issue bomb warnings as jokey twitters in the public timeline a week before, for everyone to see.

Q: Did the intention of the sender matter?

A: No and Yes

No – because as the message was not a menace one does not as a matter of law have to consider intent as it falls at the first hurdle. However there was an argument over whether, if it was a menace, the intention mattered. That is, if you write something and you mean it as a joke, but someone reads it as a threat have you committed a criminal act. In short the High Court said that in this case intent would matter as many things are said as jokes that someone might read as a threat but we can’t go criminalising that.

So what?

Well – phew. That's what.

If the conviction had been held there would be wide spread worry about what you can say on twitter. And if there’s worry about what you can say on twitter, they were be worry about Facebook, and then World of Warcraft and pretty much anything.

Sure the legal arguments would be different – is WoW or Facebook sufficiently closed to make it not a ‘public network’. Would a threat like ‘I’m going to shoot that Night Elf / Wookie / Imperial Guard in the face’ be sufficiently RP enough for it to look like a joke but not quite a joke, but still not literal etc etc.

Things may have got tricky out there.

So phew.

Now, as Shakespeare should have said “Let’s kill all the Alliance” (coz you know he would have been Horde and hard core RP), and spare a few of the lawyers eh :)

I imagine that what the court said about why Twitter is a public form of communication is important and would lead (or could be cited in a future case) the definition of public for the purposes of this Act. According to your summary:
"it relies on the internet and the public timeline is available to anyone that want’s to look at it."

(typo on wants btw).

Now Facebook relies on the internet but games like WoW don't. Public timelines aren't quite comparable to anything on Facebook. And in a game like WoW there's no public timeline of trade chat but one could be made using screenshots.

Also if one of the key elements is that it relies on the internet then perhaps players of browser based games might be more at risk of being prosecuted then players of other types of game.

On the face of it what you say makes sense. I'm sure, should there be a case, that's what would be argued by one side.

But I'm wondering if there would be different jurisdictional interpretations and different interpretations based on what area of law was brought forth - in the Twitter joke case the defence tried to use case law relating to Blackmail.

For example, is WoW or Facebook 'private' in the sense of a 'right of privacy' - under US law I wonder if it is as the notion of the public sphere as been extended so much. And if it's not private, then it's public, right?

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Richard,
I'm not sure it is off topic as these are the kinds of things that one sees in chat within games.

I suspect the news reports are actually wrong. But I've not had time to look into them. I find that the news tends to report what it thinks the police have done and focuses the more famous aspects of acts, rather than what the police actually do. For example as I commented on TN (http://terranova.blogs.com/terra_nova/2011/03/english-zynga-case-property-but-not-theft.html) the Zynga case widely reported as 'theft' was not, problem for the press is that it was a crime that hardly anyone has heard of.

In the Tom Daley case I suspect that the person was detained for other tweets in the time line which directly threaten violence and that the 'dead dad' one simply alerted people to the content of the timeline but was itself not criminal. Some press reports do alude to this, and careful reading of others show that they don't actually 'say' that he was arrested for that tweet they just heavily imply it.

I don't know the latter case, and I'm not familiar with the UK law's relating to 'hate speech', so I can't comment on that one.

My main point is that had the case gone the other way, and if such cases do go other ways in other jurisdictions I think there is at least a danger that some authorities will start to look at what goes on in games. I hope that this will serve as a good test case for common law jurisdictions.

Ah, yes, press reports can be a problem. You read things like "man jailed for stealing £3.26" whereas he was actually jailed for beating up an old lady and stealing her purse, inside which was £3.26.

In game management, I remember getting criticised for kicking someone out of MUD for ganking a newbie, whereas I hd actually kicked him out for ganking a newbie after having been repeatedly told not to gank newbies and then given a final warning that the next time he ganked a newbie he'd be out. Eventually, I reduced such complaints by banning them for "disobeying a direct arch-wiz order". Ah, the days when those with godly powers could use them...

Mr. Reynolds, thank you for interesting post. Being a Russian lawyer I can contribute to the discussion with an expected interpretation in my jurisdiction, I hope it may be of some interest for the readers. Russian law pertains to general framework of civil law systems. We have not observed any relevant trials yet, although our internet users sometimes make similar "Twitter jokes" in ru-net. Such act certainly would not fall within the terrorism definition, as this activity implies menace intentionally directed to state authorities. However, the interesting thing is that the prosecution may deem the message as an deliberately false notification about preparation of a terrorist act. The article of Criminal Code which penalizes the latter does not require that the menace should be addressed to state authorities. As regards considering Twitter as a public communication network - most likely, the answer is positive. The most recent Resolution of the Supreme Court on such kind of crimes (February 9, 2012) qualifies blogs, forums and "other" media (presumably, Twitter) as public communication network. Legal notice: this is not a legal advice, just a private professional opinion. :)

Game forums are another element that merits consideration. Are they private or public? In most MMOs only people with registered accounts can post but anyone can read. And they're certainly targeted towards the members of a particular club, the players of that game.

A while ago I got fed up with the casual use of the word "jew" in Eve Online. For people who don't follow the Eve community the word is widely used as a synonym for industrialist or trader. It's so widely used and so endemic in many of the Eve communities now that it's lost its pejorative meaning to the people who say it. In fact The Mittani actually used it in this day in a statement apologising for poor behaviour (I'm sure quite inadvertently).

When I posted a civil request on the Eve Official forums for people to stop using it in this way it provoked an impassioned reaction from many players. Some were supportive, some offered well reasoned defences of free speech but several posted quite astonishing tirades against the jews justifying hatred for them. The "Hitler had the right idea" crowd.

I really think that there's a brewing crisis here. Hate speech in public is usually illegal. Many gamers however see their online games as relaxed social environments, mens clubs, where they don't have to respect the boundaries of polite society, havens where they're freer than they usually are. I'm sure most of us have seen quite astonishing homophobia, antisemitism and racism while we've been playing our games. Surely these two elements are mutually incompatible and both regulation is growing and hate speech is, I'm sorry to say, becoming more prevalent.

Another issue is jurisdiction. What if someone in America says something in World of Warcraft that's offensive to people in Egypt? Is that a less serious crime than if someone in Egypt says something offensive to Americans? Do the EULAs we sign agreeing that jurisdiction is handled as specified in the EULA (usually agreeing to settle any dispute in the game's company's country) mean that a dispute in Eve relating to hate crime should be tried in Iceland under Icelandic law?